Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Dakunivosa [2016] FJMC 91; Criminal Case 901.2016 (21 July 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 901/16

STATE

-v-

ONISIMO ROKO DAKUNIVOSA

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

CRIMINAL TRESPASS: Contrary to Section 387(4)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ONISIMO ROKO DAKUNIVOSA with others on the 31st day of May 2016 at Nabua in the Central Division entered the night and without lawful excuse a dwelling house property of LakshayKalippan

2] Summary of facts that you have admitted revealed that;

➢ On 31/5/16 at about 11.30pm, LakshayKalippan PW1, was at home when he received a call on his mobile phone from Bimlesh Shankar PW2, who stated that he saw some Itaukei youths in PW1’s vacant house which is at 24 Lemaki Street, Nabua and under renovation.

➢ The matter was reported at Nabua Police Station.

➢ PW1 went with PC 5072 EpeliGavidi PW3, Police Officer, of Laucala Beach Estate to 24 Lemaki Street, Nabua whereby PW3 saw you underneath a bed inside PW1’s house.

➢ PW3 arrested you from the house.

3] Maximum sentence for this offence is Imprisonment for 3 months, but if the property upon which the offence is committed is any building, tent or vessel used as a human dwelling, or any building used as a place of worship, or as a place for the custody ofproperty, the offender is liable to imprisonment for 1 year

4] Tariff for the offence of Criminal Trespass is 1 month – 9 months [Ravuwai v State [2007] FJAC 55, State v Nukumate [2011] FJHC 109; HAC184.2010 (4 February 2011), state v Vidovi [2016] FJHC 459; HAC92.2016 (26 May 2016)]

5] I shall now proceed to consider your sentenceto be consistent with the tariff, mitigating factors and aggravating factors.

6] I pick 3months’ imprisonment as the starting point. There are no aggravating factors in this case.

7]As you have pleaded guilty at the first available opportunity your sentence should be reduced by a third in view of the judgement in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005. Hence your sentence reaches 2 months imprisonment.

8] You have no previous convictions and you are 20 years old. In these circumstances I draw my attention to the judgement in State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90 where both SereviSereki and KameliUlunikoro were sentenced to one year imprisonment for Shopbreaking and Larceny. Hon. Tuivaga C.J., in ordering their immediate release from prison said:

"Young first offenders should not be sent to prison, unless there are compelling reasons to do so."

In Malakai Saki v. State , Cr. App. Nos. 28, 29 and 35 of 1993. Hon.Jesuratnam J, said that-

"....... Above all the appellant was a young first offender which is an aspect that has been repeatedly emphasised by this Court as a vital factor which magistrates should take into account when sentencing. This is a clear case in which the offender should never have been sent to prison. Probation or binding over should have been explored as alternatives failing which a short suspended sentence could have been given to keep him in check if he was over 18 years of age."

Accordingly your sentence is suspended for two years.

If you commit any offence punishable by prison sentence during the next 2 years you can be charged under section 28 of the Sentencing and Penalties Decree.

SUMMARY OF THE SENTENCE

2 months imprisonment suspended for 2 years.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

21/07/2016